In case you haven’t noticed, the intersection of religion and public policy is a dangerous one.
We’re still dealing with the conflicts over public policies on same sex marriage and reproductive rights, both of which implicate what some say are their own deeply held religious beliefs.
Luckily, we’ve evolved a legal approach to religious rights that, with time and a bit of luck, allows different religious and religious communities to exist within the same society.
So to the extent that opposition to the construction of the Thirty Meter Telescope on Mauna Kea is grounded in ideas of what is considered “sacred” according to particular interpretations of Native Hawaiian religious traditions, it seems to me to be in dangerous territory.
With this in mind, it’s instructive to see how the issues of the protection of traditional Hawaiian rights and religious freedom were dealt with in the findings of fact and conclusions of law issued by hearings officer Paul Aoki after the drawn out contested case hearing. These were the basis for the decision by the Board of Land and Natural Resources to approve the TMT.
The section on “The Protection of Customary and Traditional Native Hawaiian Rights” begins on page 108, followed by the section on religious freedom. I’ve pulled these pages out of the much longer report, and the excerpt can be found here. The full report by the hearings officer is also available for download (a large file of 50+ MB).
Aoki first quotes the provision in the state constitution which provides protection for customary and traditional rights.
Citing prior Hawaii Supreme Court decisions interpreting the constitution, the hearings officer concluded that practices “associated with the ancient way of life”, and proven to have been established by Hawaiian usage before Nov. 25, 1892, are provided protection.
At paragraph 191, the hearings officer finds that, under state law…
“it is the obligation of the person claiming the exercise of a native Hawaiian right to demonstrate that the right is protected.” Petitioners, however, offered no testimony or evidence to establish that they engage in any conduct on Mauna Kea that is constitutionally protected as a native Hawaiian right or that the TMT Project would interfere with any of their practices or that the Project would interfere with constitutionally protected conduct.
The term “petitioners” refers to the TMT opponents who requested the contested case hearing.
At paragraph 194: “Petitioners have offered no proof that they are seeking protection for practices that were established by Hawaiian usage by November 25, 1892.”
That turns out to be a major point, because it is key to triggering the constitutional protections granted customary and traditional rights.
At paragraph 200:
Distinguishing between traditional and customary practices and contemporary practices is important as the Hawaii Constitution affords special protection to some practices. Although Article XII, Section 7 of the Hawaii Constitution, PASH, and Ka Pa’akai protect traditional and customary practices by native Hawaiians, they do not protect contemporary cultural practices.”
The legal appeal now pending before the Intermediate Court of Appeals implies that TMT opponents were tricked into allowing their testimony to be considered valid only on “contemporary” practices. It accuses the hearing officer and the University of Hawaii of “some very strategic litigation tactics” which resulted in the devaluing of witness testimony.
According to the appeal, during the contested case hearing, as witnesses opposed to TMT were preparing to testify about Hawaiian practices, the attorney for the University of Hawaii at Hilo offered to “stipulate” to that each of the witnesses was an expert.
“Applicant is prepared to stipulate to the five Petitioner witnesses…may be recognized as experts to their cultural practices related to Mauna Kea. That’s an offer we have. Again, it’s to expedite the process here in terms of moving this hearing along and just to avoid unduly delaying proceedings.”
But, according to the appeal, while the project opponents thought this stipulation meant that their witnesses had been accepted as experts on what are customary and traditional practices entitled to heightened protection, the stipulation was later interpreted strictly as applying only to “their cultural practices.” And without further evidence, their own cultural practices were considered “contemporary” rather than “customary and traditional.”
The hearing officer then turned to a related point.
Petitioners identified other areas in the summit region of Mauna Kea in which they engage in contemporary native Hawaiian cultural practices, but they offered no evidence of any cultural or religious practices by native Hawaiians–whether contemporary, or customary and traditional–at the five-acre site on which the TMT observatory is proposed to be located….
This has become longer than I intended, so I’ll return to this in another post to look at how the hearings officer and the land board looked at the issue of religion and the sacred.
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An attorney friend of mine, Paul M. Sullivan, wrote a major analysis of the PASH decision. His article was published in UH Law Review in 1999. Many of the issues in the PASH case, and in Paul’s essay, are focused on the meaning of “customary and traditional” practices (as distinct from newly invented ones) regarding gathering rights and shoreline access, although assertions about religious beliefs or “sacred places” are not the central focus in PASH.
Anyone interested can read Paul’s essay at
http://www.angelfire.com/hi2/hawaiiansovereignty/sullivanpash.html
It’s interesting that the TMT contested case hearing used Nov. 25, 1892 as the cutoff date for when cultural practices could be considered customary and traditional, because the PASH decision refers to a statute passed by the legislature in 1892 which formally adopted English common law as the law of the the Kingdom. PASH, and English common law, are focused on property rights, not religion; nevertheless the TMT hearing appears to set the adoption of English common law as a decisive turning point. In my own view, the turning point regarding religion and what is “sacred” (as opposed to property rights) came much earlier, in 1819, when Liholiho Kamehameha II, Queen Ka’ahumanu, and Kahuna Nui Hewahewa publicly abolished the kapu system and ordered the destruction of the heiaus and burning of idols; and the followup civil war when Kekuaokalani (custodian of Kuka’ilimoku) rebelled and tried to preserve the old religion.
I’m pleased that the TMT hearings officers realized that “customary and traditional practices” refers to cultural practices and not to a racial group — ethnic Hawaiians are not simply allowed to invent whatever new customs or practices they like and have those given special protections by the law; and in fact there were people with no native blood (for example John Young) who adopted and participated in those customary and traditional practices. Paul Sullivan hints in his essay, and I explicitly endorse the concept, that cultural and traditional practices should not be regarded as race-based at all. For example, all Hawaii’s people (not only “Native Hawaiians”) should have equal rights to shoreline access and to gathering on undeveloped or partially developed land under terms of the PASH decision and subject to the power of the legislature to enact regulations governing how those rights are exercised.
Thanks for the discussion, Ian. Part of what’s happening on the mountain, is, of course, general frustration at being powerless, not feeling recognized or important–lacking a focus to express that frustration. Actually the whole state is sacred, or should be. But one would hope for a certain flexibility so that the greater good can prevail and all people valued and celebrated.
I don’t have enough info to make any informed judgement about how “sacred” Mauna Kea is. But Ken’s point is well taken. Many abuses have been committed in this country in the name of “religious freedom.” I can’t count how many times locals have tried to justify legalizing rockets/illegal fireworks or cockfighting because they consider it a cultural practice,… all the while practicing virtually nothing else from the culture in question. It’s all a sham.
another Hawaii cultural practice:
kids riding in back of pickup truck on the freeway
another Hawaii cultural practice:
jumping from passive to angry in the blink of an eye
To expand on Ken Conklin’s comment: where is the line to be drawn? What happens when an even more reactionary faction decides that the entirety of the old Kapu system should be reinstated and observed, i.e., men and women should not dine together, certain foods should not be consumed by women, and reintroducing the death penalty for trivial slights to “Alii.”
As Ian wrote,”The intersection of religion and public policy is a dangerous one.”
On the subject of ancient versus contemporary practices, given the suppression of Hawaiian culture (at the UN Permanent Forum on Indigenous Issues, going on this week and next, I suspect some might say “cultural genocide”) in the first half of the 1900s (punished for speaking the language in schools, etc.), is it reasonable to expect modern Hawaiians to be able to show a continuity of practice?
If their grandparents or great-grandparents were too culturally suppressed to pass on knowledge, how can they know whether their contemporary practices are the same as, or different than, practices before 1892?
(And interestingly the onus is on the practitioners to prove this, rather than being on anyone to disprove it.)
As Ken Conklin noted above, “the turning point regarding religion and what is “sacred” (as opposed to property rights) came much earlier, in 1819, when Liholiho Kamehameha II, Queen Ka’ahumanu, and Kahuna Nui Hewahewa publicly abolished the kapu system and ordered the destruction of the heiaus and burning of idols; and the followup civil war when Kekuaokalani (custodian of Kuka’ilimoku) rebelled and tried to preserve the old religion.”
So it appears that “cultural genocide” has its origins in acts of Hawaiian Alii.
“Dan” wrote:
“If their grandparents or great-grandparents were too culturally suppressed to pass on knowledge, how can they know whether their contemporary practices are the same as, or different than, practices before 1892?
(And interestingly the onus is on the practitioners to prove this, rather than being on anyone to disprove it.)”
It may not seem “fair,” but do you honestly think it is a good idea for any group to claim and seize special rights and privleges for themselves, then it is up to the state to disprove each and every claimant. There are charlatans out there who would take advantage of that process.
Anyone who is serious about practicing and perpetuating an old custom or tradition would, I would think, gladly carry out the research and due diligence to make sure that what they are engaging in is something that is based on accuracy and merit. Once the authenticity of that practice is established, THEN an application can be made to seek out special protections/privleges for that practice. But if the motivation is to simply seek out rights and protections in the name of something that is vague and indefinite, that is when the charlatans and wannabes come out of the woodwork, seeking to cash in and enrich themsleves at the expense of taxpayers.